June 11, 2012

The Supreme Court Has a Legitimacy Crisis, But Not For the Reason You Think

Last week, a New York Times/CBS poll found that only 44 percent of Americans approve of the Supreme Court’s job performance and 75 percent say the justices are sometimes influenced by their political views. But although the results of the poll were striking, commentators may have been too quick to suggest a direct link between the two findings. In the Times article on the poll, for example, Adam Liptak and Allison Kopicki suggested that the drop in the Court's 66 percent approval ratings in the late 1980s “could reflect a sense that the court is more political, after the ideologically divided 5-to-4 decisions in Bush v. Gore and Citizens United.” At the beginning of his tenure, Chief Justice John Roberts said that he subscribed to a similar theory. “I do think the rule of law is threatened by a steady term after term after term focus on 5-4 decisions,” Roberts told me.

But a new study by Nathaniel Persily of Columbia Law School and Stephen Ansolabehere of Harvard suggests that the relationship between the Court’s declining approval ratings and increased perceptions of the Court’s partisanship may be more complicated than the New York Times and the Chief Justice suggest.

According to the study, Americans already judge the Court according to political criteria: They generally support the Court when they think they would have ruled the same way as the justices in particular cases, or when they perceive the Court overall to be ruling in ways that correlate with their partisan views. If this finding is correct, the most straightforward way for the Court to maintain its high approval ratings is to hand down decisions that majorities of the public agree with. And, like its predecessors, the Roberts Court has, in fact, managed to mirror the views of national majorities more often than not. In a 2009 survey, Persily and Ansolabehere found that the public strongly supported many of the Supreme Court’s recent high-profile decisions, including conservative rulings recognizing gun rights and upholding bans on partial birth abortions, as well as liberal rulings upholding the regulation of global warming and striking down a Texas law banning sex between gay men.

But if the public agrees with most of the Court's decisions, why is it more unpopular than ever? Part of the answer has to do with the fact that there are a handful of high profile decisions on which the Court is out of step with public opinion, including the Kelo decision allowing a local government to seize a house under eminent domain and the Boumediene case extending habeas corpus to accused enemy combatants abroad, and recent First Amendment decisions protecting unpopular speakers, such as funeral protesters, manufacturers of violent video games, and corporations (in the Citizens United case.) All of these decisions were unpopular with strong majorities of the public.

But Persily and Ansolabehere also found that even decisions that closely divide the public can lead to a decrease in the Court’s approval rating over time, by increasing the perception among half the public that the Court is out of step with its partisan preferences. Bush v. Gore is perhaps the clearest example. In the short term, the Court’s overall approval ratings didn’t suffer: Republicans liked the decision, while Democrats didn’t, and the two effects canceled each other out. But Persily and his colleagues found that ten years later, Bush v. Gore continues to define the Court for many citizens, destroying confidence in the Court among Democrats while reinvigorating it among Republicans. Since an important component of the Court’s overall approval rating is whether Americans perceive themselves to be in partisan agreement with the Court as an institution, Bush v. Gore has led to a statistically significant decline in approval among Democrats as a whole.

At the beginning of his tenure, Chief Justice Roberts said he wanted to avoid 5-4 decisions because if people perceived the Court as a partisan institution, they would lose confidence in the institution more generally. But Persily and Ansolabehere’s study suggests a more complicated reality: Americans support the Court when they perceive themselves to be in partisan agreement with it, and they lose confidence when they perceive the justices to be moving in a different partisan direction than their own. The study found that most Americans either don’t know or guessed wrong about which party’s presidents appointed the majority of justices: only a third knew that a majority of justices were appointed by Republican presidents. And the study also found that Republicans who can correctly identify the fact that Republican presidents appointed a majority of justices tend to support the Court, while Democrats who can correctly identify the fact that Democrats appointed a minority of justices express less support.

That means that the conservative justices would be wrong to conclude that just because two thirds of the country wants the Court to strike down part of the health care law, similar numbers of Americans would rally around a 5-4 decision against it. Over the long term, 5-4 decisions along party lines tend to decrease support for the Court among Democrats and increase support among Republicans, simply by reminding Americans of the partisan composition of the Court. If President Obama and other Democrats attack a 5-4 decision striking down health care as an act of Republican partisanship, this would increase the perception among Democrats that the Court doesn’t share their partisan views. And Democrats who currently oppose the mandate may come to oppose the conservative justices’ overturning of the mandate even more. "If the court strikes down the mandate, and elites, including the President, frame the decision in partisan terms, the decision will reinforce the roots of partisanship that many Americans see in the Court's recent decisions,” Persily told me.

Given that reality, Chief Justice Roberts may have been too quick to conclude that 5-4 partisan divisions would decrease the Court’s legitimacy over time: The decrease in confidence among Democrats may be offset by the increase in confidence among Republicans. But Roberts was certainly correct that the Court should be held to different standards. As Roberts suggested, in an age when the White House and Congress are increasingly viewed as partisan institutions, avoiding polarization on the Supreme Court is a “special opportunity.” It is also a defining test of his leadership.

Jeffrey Rosen is the legal affairs editor of The New Republic.

Jeffrey Rosen is legal affairs editor at The New Republic and president and CEO of the National Constitution Center.